Required Reading

Cockburn v GIO Finance Ltd (1996)

McNally won $1.49 million in damages after an accident which rendered him a quadriplegic. Yet his father, to whom he entrusted care of his finances, lost the money

Cockburn, McNally’s solicitor, was assisting McNally in making transactions with GIO, with whom McNally had signed a mortgage and deed with before the accident.

GIO wanted certain documents signed explaining consequences for default on the mortgage, and they were, but Cockburn had advised McNally not to sign.

McNally sued Cockburn’s firm and GIO. Cockburn sued GIO for the money

Issues:

Was there undue influence on McNally by his father to sign the documents?

Was Cockburn being careful enough?

A conflict of interest existed between the father’s business and the plaintiff, who were both being served by the plaintiff’s firm

Was Cockburn aware of the conflict of interest/undue influence and thus responsible?

Was reasonable care being taken?

Result:McNally won his claim against both Cockburn’s firm and GIO

P and P and Legal Aid Commission of New South Wales; Human Rights and Equal Opportunity Commission (Intervener) (1995)

Facts:

Lessli, the youngest of three of P and P’s children, was intellectually disabled.

P and P, the parents, sought to permanently sterilise her

P and P lost their case in the Family Court and P and P appealed

Issues:

Does Lessli have the capacity to understand what is being done to her? No, and maybe never

What does the Family Court say? As per Re Marion, parents have no right in this case

Lessli requires some serious supervision and has poor social skills

According to her parents, her sexual understanding justifies the need for sterilisation – but the court completely rejects this

Will it, as the parents argue, prevent sexual abuse? No.

Then we get to eugenics – which are intrinsically offensive

Are existing guidelines appropriate? Yes but they must be applied in a certain way

The procedure is serious and irreversible

The separate representative – must act professionally, impartially and in the best interests and wishes of the child

Result: Lessli was sterilised

The Independent Children’s Lawyer, Law Society Journal, October 2006

[1]Family Law Amendment (Shared Parental Responsibility) Act 2006 establishes best interests of the child and replaces the child’s representative with an independent children’s lawyer based upon UNCROC

Independent children’s lawyers: Must seek best interest of the child where there are allegations of abuse, conflict, alienation, cultural differences, and separation. However there is complete court and Legal Aid discretion.

Independent children’s lawyer must form views on best interests of the child but does not have to take child’s instructions – he does not represent the child per se

[2]Best interests of the child: Based upon benefit of relationship with parents; protection from views, shared parental responsibility, relatives and cultural freedom

The child’s wishes are different from the child’s views, and the lawyer must do all in his/her best efforts to find them out and inform the court. Confidentiality is not a legal obligation if it is not in the best interests of the child

When a client’s capacity is in doubt, Law Society NSW Client Capacity Guidelines

[3] A solicitor’s role is to carry out a legal assessment based on capacity and clinical consultation

[4]Capacity does not have a fixed definition, but generally it relates to understanding facts; weighing up consequences and communication

Key principles:

Always presume a person has capacity

Capacity is decision-specific

Capacity is fluid

Don’t make assumptions that a person lacks capacity because of their age, appearance, disability of behaviour

Assess a person’s decision-making ability – not the decision they make

Respect a person’s privacy

Substitute decision-making is a last resort

[5]Indicators of lack of capacity: While you should assume capacity, there are certain warning bells and red flags to note. Some are pretty obvious: comprehension or communication difficulties, or even mere confusion.

[6]Communication with clients: Be open and use appropriate techniques:

Ask open-ended questions

Do not ask leading questions

Frame your questions to quickly identify any areas of concern for with a person may need support or help, or require a substitute decision-maker

It is important to ensure it is the person being assessed who answers the questions

End

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